In many jurisdictions, the courts will not set a case for trial unless the parties have participated in mediation, and the settlement efforts have been unsuccessful. The reason for the requirement is simple. The odds are very good that negotiations conducted by a skilled mediator will produce a settlement agreement, and a settlement is better than a trial.
Understanding a lawyer’s role
The old adage “if you’re in big trouble, hire a good lawyer” is certainly valid. So is the admonition, “it is what it is”. Stated another way, hiring a talented lawyer won’t change the facts, BUT, superior legal assistance is necessary to work through the tough parts.
It is what it is. Or, is it?
The parties will often provide the mediator very different versions of the “facts”. The differences are usually due to differences in perspective. Understanding that “it is what it is” depends on the observer’s perspective is an important step for each party to take on the path toward resolution.
Mediation is a process
Mediation is a process, not a single event. The steps in the process include:
- Having an initial conference with your lawyer concerning background information,
- Compiling evidence to support your legal position,
- Outlining your objectives,
- Prioritizing your objectives,
- Repeating steps 1 through 4, from the other party’s point of view,
- Conferencing with your lawyer concerning the preparations for mediation,
- Reviewing the instructions from the mediator concerning the mediation rules,
- Doing your best to relax and allow the professionals to do their jobs.
Step 5 may seem strange or even a waste of time, but it is a very important part of preparation. Viewing the issues from the other side provides a clue about what is negotiable and what may create an impasse.
Putting together the pieces of the puzzle
In most cases, there are pertinent documents in the possession of the parties. The evidence may include bank statements, receipts, emails, calendars, school records, etc. Promptly delivering that evidence to your lawyer is essential.
When a person is involved in a family law dispute, mental and emotional stability is tough to maintain. That is particularly true when other folks offer you advice. Guidance from your lawyer and a mental health professional is essential. Other “helpful advice” is not helpful. Stick with the advice from the professionals.
The mediator is in charge
The mediator makes the rules concerning how the mediation conference is conducted – that is part of the mediator’s expertise. Respect the mediator’s authority to control and guide the negotiations.
What will an attorney do and what they will not do?
Mediators and experienced lawyers know that there are some invisible boundaries involved in settlement negotiations. Keeping the discussions and proposals within those parameters is absolutely necessary. Unrealistic demands and “take it or leave it” proposals can result in impasse.
Line in the sand
Legend has it that William Barrett Travis used his saber to draw a line in the sand at the Alamo as confirmation that he would not yield. The line in the sand was a historic ultimatum issued when no other alternative existed.
Issuing an ultimatum in a mediation setting is counterproductive. The mediator is the appropriate person to decide whether an impasse has occurred.
Remember – the 13 days at the Alamo did NOT involve a settlement conference.
Make them agree
When a party’s patience grows thin and frustration takes hold, the mediator often hears, “you’re the mediator, just go in there and make them agree”.
At that point, remember to take a deep breath and trust the mediator to do his/her job.